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The Drought-Busting Bill Congress Just Passed Might Screw the Endangered Species Act

The Sacramento-San Joaquin River Delta runs through a pear orchard shown in this aerial view in Northern California.

RANDALL BENTON/SACRAMENTO BEE/MCT/GETTY IMAGES

This summer, Donald Trump visited the Central Valley and promised voters he would prioritize agricultural development in California. In his speech, the president-elect blamed the environmental laws protecting a "certain three-inch fish"—the Delta smelt—for the prolonged drought. He promised, if elected, to place the needs of farmers over fish.

But it looks like his promise is coming ahead of schedule. On Saturday, Congress passed the Water Infrastructure Improvements for the Nation Act, a huge bill that protects safe drinking water, provides upgrades to infrastructure like ports, and provides $558 million dollars in drought relief for California. And most of that stuff is uncontroversial. Overdue, even. But not all. Of particular concern, if you are a biologist, fish-lover, or fish, is language that authorizes increased pumping from the Sacramento-San Joaquin Delta to farms in drier Southern California drought-stricken south.

Current water policy in California places strict regulations on how much water can be pumped from the Delta: Water managers have to pay attention to rainfall, the presence of fish, and set up ranges for how much H2O can be pumped. But the bill calls for maximum pumping. And this could doom the Delta smelt—and several other endangered, endemic fish—to extinction. It could also weaken the Endangered Species Act altogether, opening it to legal attacks from anyone who prioritizes resource extraction over the existence of thousands of currently listed critters.

Farms versus fish is an old debate in California's water politics. It began with gigantic pumps in Northern California's Sacramento-San Joaquin River Delta. These send fresh water down hundreds of miles of canals to farms and cities in the south. Those pumps are so strong, however, they cause the Delta to run backwards, and pull in salty water from the Bay. And this salty water causes ecological damage in the Delta, most acutely by killing off huge numbers Delta smelt, that certain three-inch fish.

In the early 1980s, biologists studying the Delta smelt noticed that its numbers had dropped drastically. “If it disappeared, you probably wouldn’t notice,” says Peter Moyle, biologist at UC Davis, and one of the first scientists to study the smelt. But the Endangered Species Act protects any threatened group of animals, even small, boring, fish. So, in 1993, Moyle and others successfully petitioned to have the Delta smelt listed. As a result, state and federal water regulators who operate the pumps have had to check a number of boxes—including the smelt's current population numbers and the Delta's salinity level—before operating the pumps. That means farmers and cities to the south sometimes don't get the water they are allotted. That's where maximum pumping, or "maximum diversions," in water policy parlance, comes in. The new water bill says the pumps' state and federal managers must send out all the water they can.

And despite some nods in the bill to environmental protections for fish, the law will likely be disastrous for the smelt and other endangered fish in the Delta. This gets a little technical, but it comes down to the volume of water the pumps can pull out of the Delta before endangered fish begin dying. But it would be impossible to say exactly how much water that is, so biologists have established a range, with maximum threat to fish at one end, and minimum at the other. The water bill refers to this biological opinion numerous times, but also has a passage instructing state and federal water managers to "provide the maximum quantity of water supplies," within applicable laws and regulations, as quickly as possible.

This mandate for maximum pumping basically tells those state and federal officials to pump to the extreme end of the safe range for fishes. This is unless the pumping agencies conduct a bunch of analyses proving why less pumping is necessary. "By doing that, it flips the Endangered Species Act directive to protect and restore species on the edge on its head, and directs agencies to take risky actions until it's likely to be too late to reverse course," says Kate Poole, a water lawyer at the Natural Resources Defense Council.

More broadly, that mandate to funnel water to agribusinesses could become a legal tool for anyone eager to pry open Endangered Species Act. And its opponents are many, from logging companies in the Pacific Northwest, to strip mining operations in the Appalachians. Let's say this bill winds up in court, challenged by California fish advocates. If those environmentalists lose, opponents of the Endangered Species Act could use the legal precedent to argue cases where endangered animals are keeping industry from getting at resources they want. “This bill could piecemeal the regulations of the ESA away,” says Poole.

And the smelt aren't the only endangered fish species in the Delta—several of the others are even part of commercially-viable fisheries. And those maximum pumping rules don't just hurt fish and fishermen. Overpumping hurts farmers, too. The Delta is mostly agricultural acreage, and when the pumps overdo it, water quality for the farmers there suffers. Long story short: Politically neutral water policy is impossible in California. Even for a certain boring, little, three inch fish.